The opinion
George Rose Smith, J., concurring. • I agree that the decision of the trial court should be affirmed, but it does not seem to me that the language of the statutes supports the theory adopted in the opinion written by Justice Holt, which for convenience will be referred to as the majority opinion.
When the Tax Commission concludes that the assessment of property throughout the State is not properly equalized the Commission has a choice of two remedies. First, it may direct a blanket percentage increase in all assessments in counties or districts where assessed values are uniformly below the State average, or it may direct a similar percentage decrease in areas having assessments that are too high. Ark. Stats. 1947, §§ 84-714— 84-716. When the Commission chooses this remedy it is acting as a State Equalization Board, and by § 84-715 its authority is specifically limited to making percentage increases or decreases. Provision is made in the same section for notice to the citizens in the areas affected, and they are given an opportunity to be heard before the increase or decrease is certified to the county clerk not later than the third Monday in November. I agree with the majority that this procedure is valid and enforceable.
There may also be instances where some tracts in a particular county or district are properly assessed according to the state-wide average, but the valuation of other tracts is too high or too low. Here a blanket increase or decrease would not be appropriate. To correct such a situation the Commission is authorized to pursue its second remedy; that is, to order a-complete reassessment of all property (or of designated classes of property) within the particular county or district. That is what was attempted in this case. The majority conclude that the attempt fails because the work was not completed by the third Monday in November. I agree that the attempt must fail, but in my view the reason is that the. controlling statutes, do not create a workable system by which the Commission can complete a reassessment by the second method of procedure.
The majority interpret § 84-464 to mean' that the Commission must file its reassessment by. the third Monday in August, so that a dissatisfied property owner may appeal to the county equalization board at its regular session, which begins the third Monday in August and may continue until the third Monday in September. Section 84-706. The majority accordingly hold that the Commission’s action in’this case came too late.
It does not seem, to me that the statute is susceptible of this construction. To begin with, there is nothing in the statute that expressly requires the Commission to file its reassessment by the third Monday in August. On the contrary, § 84-464 empowers the Commission to order a reassessment “whenever ... it shall be made to appear . . . that the assessment of the property in any county, or district or subdivision thereof, is not in substantial compliance with law. ’ ’ Thus by its terms the statute permits the reassessment to be made at any time during the year.
Furthermore, if the Commission must make its reassessment by the third Monday in August, then as a practical matter this method of equalizing assessments is 'useless. The assessor is not required to file his original assessment until the third Monday in August. Section 84-415. That is the very day on which the majority require the Commission to complete its action. But obviously the Commission cannot even determine whether a reassessment is necessary until it has examined the assessor’s work, much less perform the immense task of reassessing every tract in the county or district. It is evident that by merely withholding their assessments books until the last day the assessors throughout the State can completely prevent the exercise of the Commission’s power as construed bjr the majority opinion.
It is for this reason that the legislature undoubtedly intended for the Commission to be able to order a reassessment at any time during the year. But in my opinion the provisions of the existing statutes are so incomplete that the legislative intention cannot be carried into effect. I shall mention only two of the defects that are fatal to the workability of the law.
First, it is a basic requirement of due process of law that one whose property is to be taxed according to its value must be afforded an opportunity to be heard on the question of valuation. Londoner v. Denver, 210 U. S. 373 ; McGregor v. Hogan, 263 U. S. 234 . Here § 84-464 attempts to comply with the constitution by providing that the reassessment shall be treated as an original assessment and be subject to equalization by the county board and to such appeals as are allowed in the case of original assessments. On its face tills provision seems to afford dne process, bnt in actuality it is too indefinite to be workable. What is the period allowed for an appeal to the county board of equalization from an original assessment? The statute merely states that the property owner may apply to the board not later than the third Monday in August. Section 84-708; Suppose the reassessment is filed in October; is the property owner free to appeal at any time before the following August? If so, his appeal is of no value, for in the meantime the taxes will already have been extended on the taxbooks; and the law makes no provision for protecting the landowner in this situation. .
Second, a reassessment filed during most of the months in the year will be of no practical value. In the case at bar the Commission filed its reassessment in January and ordered the county equalization board to reconvene on January 23 to hear objections to the new assessed valuations. The quorum court had already met in the preceding November, however, and its tax levies were based on assessed values that then appeared. To permit valuations to be changed on 'a wholesale scale after the meeting’ of the quorum court might easily disrupt county finances completely. Further, the county clerk must extend the taxes and deliver the taxbooks to the collector by the third Monday in February (§ 84-807), but how can he do so if the valuations are subject to change at the very time that he is working on the books ? It does not seem to require extended argument to demonstrate that our present legislation overlooks so many contingencies that it cannot be said to outline a workable method of equalizing assessments under what I have referred to as the second method of procedure.
I think that the General Assembly, if it chooses to, may establish a system by which the Tax Commission might complete a reassessment within a limited time after the filing of the original assessment and by which the property owned might have a limited time to apply for a hearing before the equalization board or some other body. Of course the due process clause does not require a judicial review,- as long as an opportunity is given to be heard by some impartial tribunal. Kelly v. Allen, 9th Cir., 49 F. 2d 876 , cert. den., 284 U. S. 642 . Or the legislature might permit the Commission to act at any time during the year, if the landowner were given a clearly defined opportunity for a hearing and if the revised assessment should not be effective until the next meeting of the quorum court. I think, however, that it is readily apparent that the law now under consideration is not sufficiently complete to create an enforceable system of reassessing individual properties within a county or district. For that reason I concur in the affirmance of the decree.